LOVITT v. WARDEN, SUSSEX I STATE PRISON

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revision. If you find a typographical error or other formal error, please notify
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LOVITT

v.

WARDEN, SUSSEX I
STATE PRISON

PRESENT: All the Justices

Record No. 012663

ROBIN MCKENNEL LOVITT

v.

WARDEN, SUSSEX I STATE PRISON

OPINION BY JUSTICE BARBARA MILANO KEENAN

September 12, 2003

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

The petitioner, Robin M. Lovitt, was convicted by a jury of the
capital murder of Clayton Dicks in the commission of robbery, in violation of
Code ? 18.2-31, and of robbery, in violation of Code ? 18.2-58. The
circuit court sentenced Lovitt in accordance with the jury verdict to death for
capital murder and to life imprisonment for robbery. We affirmed the circuit
court’s judgment in Lovitt v. Commonwealth, 260 Va. 497, 520, 537 S.E.2d
866, 881 (2000), cert. denied, 534 U.S. 815 (2001).

Under Code ? 8.01-654, Lovitt filed a petition for a writ
of habeas corpus against the warden of the Sussex I State Prison (the warden).
Lovitt alleged, among other things, that the destruction of certain trial
exhibits after his convictions were affirmed by this Court violated his right of
due process by preventing adequate review of his habeas corpus petition. He also
alleged that the prosecution suppressed exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963), and that he was denied effective assistance
of counsel at trial. We entered an order directing that the Circuit Court of
Arlington County (the circuit court) conduct an evidentiary hearing under Code
? 8.01-654(C) concerning all issues raised in Lovitt’s habeas corpus
petition. The circuit court conducted an evidentiary hearing (habeas hearing)
pursuant to our order and submitted a written report stating its findings of
fact and recommended conclusions of law.[1]See Code ? 8.01-654(C)(3).

I. FACTS

In Lovitt, we stated in detail the facts relating to the
convictions and penalties imposed on Lovitt for the capital murder and robbery
charges. 260 Va. at 502-08, 537 S.E.2d at 870-73, 879. We will recite those
facts from our previous opinion that are relevant to the present habeas corpus
proceedings:

[I]n the early morning hours of November 18, 1998, Clayton
Dicks was stabbed six times in the chest and back while working during the
overnight shift at Champion Billiards Hall (the pool hall) in Arlington
County.

A few months before the killing, Lovitt worked as a cook at
the pool hall on an evening shift that ended when Dicks arrived to begin the
overnight shift. Amy Hudon, the manager at the pool hall, testified that
about two months before Dicks was killed, she had trouble opening a cash
register drawer near a pool table and asked Lovitt to help her open the
drawer. Lovitt opened it by "wedging" a pair of scissors into the
drawer’s latch. About two months before the killing, Lovitt quit working at
the pool hall.

. . . .

[On November 18, 1998,] Dicks arrived at the pool hall
between 1:30 and 2:00 a.m. The other employees present when Dicks arrived
had left the pool hall by 3:00 a.m., leaving Dicks as the sole employee on
the premises. . . .

About 3:25 a.m., Jos? N. Alvarado and Carlos Clavell
entered the pool hall and saw two men arguing behind the bar. Alvarado
testified that one man was shorter than the other, and that the shorter man
repeatedly shoved the taller man, who was wearing an apron. Alvarado stated
that he and Clavell watched as the shorter man stabbed the taller man six or
seven times with a silver-colored weapon. Alvarado saw blood on the taller
man’s apron and watched as the taller man fell to the floor behind the bar.
Clavell testified that he heard the taller man begging the shorter man to
stop attacking him. Both Alvarado and Clavell saw the assailant repeatedly
kick the man who had fallen to the floor.

Alvarado and Clavell immediately ran from the pool hall to a
service station, where Alvarado telephoned the "911" emergency
response number and reported what they had seen. Although Alvarado could not
identify Lovitt as Dicks’s assailant at the preliminary hearing held in this
case, Alvarado testified at trial that he was about "80% certain"
that Lovitt was the assailant.

When police and emergency medical personnel arrived at the
pool hall in response to Alvarado’s telephone call, they found Dicks lying
on the floor behind the bar in a pool of blood. Dicks was alive but was
unable to speak and was taken by helicopter to a nearby hospital. The
multiple stab wounds prevented his heart from functioning, and he died while
awaiting surgery.

Dicks had been stabbed six times, five times in the chest
and once in the back. Four of these wounds were lethal. Dicks also suffered
two areas of internal hemorrhage on both sides of his head, as well as
external abrasions on both shoulders and on his left knee.

The police recovered from the pool hall a cash register that
was lying on the floor near where Dicks was found. The register was broken
into pieces, the cash drawer had been removed from the register and was
missing, and a torn piece of a ten-dollar bill was found nearby. A pair of
scissors with orange handles that was usually kept in a container on the bar
was missing. A police canine unit found an orange-handled pair of scissors
bearing blood lying open in the woods about 15 yards behind the pool hall.

Warren A. Grant, Lovitt’s cousin, testified that Lovitt
arrived at Grant’s home in the early morning hours of November 18, 1998.
Grant lived about a quarter of a mile from the pool hall in a residential
area located on the "other side" of the woods. Grant stated that
Lovitt knocked on his door sometime between 1:30 and 3:00 a.m. Lovitt
. . . entered the house carrying what looked like a large, square,
gray metal box. After Lovitt unsuccessfully tried to open the locked box,
Grant eventually opened it by using a screwdriver to "pop" some of
the screws securing the box. Lovitt removed money from the opened cash
register drawer and divided the cash between himself and Grant. Lovitt left
the cash register drawer with Grant and instructed him to "[g]et rid of
[it]." A few days later, Grant began cutting the cash drawer into
pieces with tin snips and put them in a bag.

. . . .

On November 20, 1998, Arlington Detective Noel E. Hanrahan
obtained pieces of the cash register drawer from Grant. Four days later,
Lovitt was arrested and charged with the present
offenses. . . . When Officer Stephen Ferrone collected
Lovitt’s clothing at the jail, Ferrone asked a detective whether he needed
to seize Lovitt’s jacket. Ferrone testified that, upon hearing this
question, Lovitt stated, "I wasn’t wearing it when it happened."

Julian J. Mason, Jr., a forensic scientist employed by the
Virginia Division of Forensic Science, qualified as an expert witness on the
subject of tool mark identification. He testified that the cash register
drawer Grant surrendered to the police had been removed from the broken cash
register found on the floor of the pool hall. Mason also stated that the pry
marks on the cash register drawer were made by the scissors that were found
in the woods behind the pool hall.

. . . .

Carol Palmer, a forensic scientist employed by the Virginia
Department of Forensic Science, qualified as an expert witness on DNA
testing. Palmer extracted human DNA from two places on the scissors, on a
blade near the tip and on a blade near the finger loops. She also extracted
blood from three small circular areas on the left front side of Lovitt’s
jacket, but the DNA tests were inconclusive and Palmer was unable to
determine whether the blood on the jacket was human. . . .

. . . The DNA extracted from the tip of the
scissors displayed a DNA profile that matched the DNA profile of Dicks. The
profile derived from this sample did not match the DNA profiles of either
Lovitt or Grant, thus eliminating both as contributors of this DNA. Palmer
stated that the chance of someone other than Dicks contributing the DNA
sample on the tip of the scissors was 1 in more than 5.5 billion.

The DNA extracted from the mid-section of the scissors also
matched the DNA profile of Dicks. However, Palmer stated that this DNA
evidence, unlike the DNA evidence from the tip of the scissors, did not
exclude either Lovitt or Grant and, thus, was inconclusive as to them.

After Lovitt’s arrest, he was incarcerated in the Arlington
County Jail in the same unit as Casel Lucas. Lovitt and Lucas developed a
friendship during the two months that they lived together in this unit.
Lovitt first told Lucas that after leaving the bathroom at the pool hall on
the night of the murder, Lovitt saw a Hispanic man stabbing Dicks. Lovitt
told Lucas that, at that time, Lovitt saw the cash register drawer, grabbed
it, and ran from the pool hall.

According to Lucas, Lovitt later stated that he knew Dicks
and was aware that no one else would be in the pool hall late at night.
Lovitt further related that he waited in the bathroom until everyone left
the pool hall before coming out of the bathroom to attempt to open the cash
register drawer. Dicks confronted Lovitt as he unsuccessfully attempted to
open the cash drawer. Lovitt told Lucas that he had to kill Dicks because
Dicks had recognized him. According to Lovitt, Dicks asked him, "[W]hy
[are] you doing this?" Lovitt admitted to Lucas that he stabbed Dicks
several times and took the cash register drawer to his cousin’s house where
he and his cousin split the money before leaving to buy some drugs. Lovitt
told Lucas that he discarded the murder weapon while en route to or from
Grant’s house, and that he changed his clothes at Grant’s house because he
had blood on his shirt and pants.

. . . .

During the penalty phase of the trial, the Commonwealth
presented evidence of Lovitt’s criminal record. In October 1975, when Lovitt
was 11 years old, he was charged with assault and placed in protective
supervision. Also as a juvenile, in August 1979, Lovitt was committed to the
Beaumont Learning Center of the State Department of Corrections (Beaumont)
based on adjudication of charges of breaking and entering and larceny. While
at Beaumont, Lovitt was disciplined for fighting, assault, and possessing
contraband items. After his release from Beaumont in 1980, Lovitt was
convicted of grand larceny in 1981 and was sentenced to 12 months in jail.

Between 1983 and 1985, Lovitt was convicted of petit
larceny, grand larceny, breaking and entering, and distribution of
marijuana. In 1986, Lovitt was convicted of attempted robbery and was
sentenced to a term of imprisonment of from one to three years. After being
released on parole in August 1987, Lovitt’s parole was revoked in August
1988 based, in part, on additional arrests and his failure to pass certain
drug tests. Lovitt later was convicted of statutory burglary and grand
larceny. While incarcerated on these convictions and the parole violation,
Lovitt was disciplined for damaging property and for fighting.

In September 1990, Lovitt again was released on parole. In
early 1991, Lovitt was convicted of possession of cocaine, grand larceny,
and burglary. While incarcerated on these charges, Lovitt was the subject of
ten disciplinary actions for offenses including possession of contraband,
disobeying direct orders, assault, possession of intoxicants, and
manufacturing "shank handles." After being released on parole in
October 1996, Lovitt was convicted in 1997 of possession of marijuana, petit
larceny, unlawful entry, assault and battery, and destruction of property.
Lovitt was on parole at the time of the present offenses.

In October 1998, Arlington County Police Officer Jerome A.
Lee detained Lovitt in an apartment parking lot in Arlington. Lovitt had
parked his car behind the apartments, appeared to be very nervous, and
consented to a search of his vehicle. Lee found a long kitchen knife on the
floor of the passenger area and a soda can used to smoke crack cocaine in
the rear floor area of the vehicle.

Lovitt presented testimony from his sister, [Lamanda] Jones,
who testified that Lovitt was the oldest of 12 children and that he helped
take care of his younger siblings, although not "gladly." Lovitt
also presented testimony from four deputies employed by the Arlington County
Sheriff’s Office, who stated that Lovitt had not presented any disciplinary
problems while being held in jail on the present charges.

Id. at 502-08, 537 S.E.2d at 870-73.

In May 2001, about six months after we affirmed Lovitt’s
convictions, the circuit court entered an order authorizing destruction of the
exhibits entered into evidence at Lovitt’s trial. Pursuant to the destruction
order, all exhibits received in evidence at trial, with the exception of one
chart, were destroyed. On October 1, 2001, the United States Supreme Court
denied Lovitt’s petition for a writ of certiorari from this Court’s judgment. SeeLovitt v. Virginia, 534 U.S. 815 (2001).

II. STANDARD OF REVIEW

When we consider a circuit court’s findings of fact and
recommended conclusions of law submitted pursuant to Code ? 8.01-654(C),
we defer to the court’s factual findings and are bound by them unless they are
plainly wrong or without evidentiary support. Hedrick v. Warden, 264 Va.
486, 496, 570 S.E.2d 840, 847 (2002). However, the circuit court’s recommended
conclusions of law involve mixed questions of law and fact and are subject to
our denovo review. Id.

III. HABEAS HEARING

At the habeas hearing, Lovitt presented evidence regarding the
destruction of the trial exhibits, the alleged Brady violations, and his
counsel’s alleged failure to provide effective assistance at trial.

A. DESTRUCTION OF EVIDENCE

Testimony at the habeas hearing revealed that in April 2001,
Robert C. McCarthy, Chief Deputy Clerk of the Circuit Court of Arlington County,
drafted an order authorizing the destruction of the exhibits received in
evidence at Lovitt’s trial. McCarthy, who was responsible for evidence stored in
the clerk’s office, testified that he thought he was authorized to destroy the
trial exhibits after receiving a mandate from this Court indicating that
Lovitt’s convictions were affirmed. McCarthy also stated that he decided to
destroy the trial exhibits to create additional space in the clerk’s office
evidence room.

McCarthy drafted the evidence destruction order without
consulting anyone in the Commonwealth’s Attorney’s office, the Attorney
General’s office, or the Arlington County Police Department. McCarthy also did
not notify any of the circuit court judges, Lovitt’s trial counsel, or his
habeas counsel of the impending evidence destruction.

McCarthy drafted the order before May 2, 2001, the date that
Code ?? 19.2-270.4:1 and –327.1 became effective. Code
? 19.2-270.4:1 provides, in relevant part:

B. In the case of a person sentenced to death, the court
that entered the judgment shall, in all cases, order any human biological
evidence or representative samples to be transferred by the governmental
entity having custody to the Division of Forensic Science. The Division of
Forensic Science shall store, preserve, and retain such evidence until the
judgment is executed. . . .

. . . .

E. An action under this section or the performance of any
attorney representing the petitioner under this section shall not form the
basis for relief in any habeas corpus or appellate proceeding.

A. Notwithstanding any other provision of law or rule of
court, any person convicted of a felony may, by motion to the circuit court
that entered the original conviction, apply for a new scientific
investigation of any human biological evidence related to the case that
resulted in the felony conviction . . . .

. . . .

G. An action under this section or the performance of any
attorney representing the petitioner under this section shall not form the
basis for relief in any habeas corpus proceeding or any other appeal.

McCarthy took the destruction order prepared in Lovitt’s case,
along with between 15 and 20 other such orders, to the chambers of Judge Paul F.
Sheridan. McCarthy left the orders in Judge Sheridan’s chambers for entry
without providing him any information concerning the relevant cases. Judge
Sheridan, who did not conduct Lovitt’s trial, entered the destruction orders on
May 21, 2001, authorizing the destruction of all exhibits entered into evidence
at Lovitt’s trial. These exhibits, with the exception of the one chart, were
destroyed a few days later.

Two deputy court clerks, Clifford P. Kleback and Gwendolyn
Gilmore, testified that they spoke with McCarthy before he submitted the
destruction orders to Judge Sheridan. Both deputy clerks told McCarthy, who was
their immediate supervisor, that he should not destroy the evidence in Lovitt’s
case because it was a "capital case" and Lovitt had not been executed.
Kleback, who was the clerk assigned to the courtroom during Lovitt’s trial,
stated that he told McCarthy that the case involved DNA evidence, and that he
repeatedly advised McCarthy not to destroy the evidence.

Both Kleback and Gilmore testified that McCarthy told them that
the evidence could be destroyed because Lovitt’s appeal had ended. Kleback and
Gilmore deferred to McCarthy’s decision and, at that time, did not report these
conversations to either the clerk of the circuit court or to anyone in the
prosecutor’s office.

McCarthy testified that he did not recall speaking with Kleback
and Gilmore before the evidence in Lovitt’s case was destroyed. McCarthy also
stated that he did not review Lovitt’s case file to determine whether Lovitt’s
appellate remedies were exhausted but instead relied on this Court’s mandate
affirming Lovitt’s convictions. According to McCarthy, when he drafted the
destruction order, he may have known that Lovitt’s case was a "capital
murder case," but he was unaware that it was a "death penalty
case." He further testified that at the time the destruction order was
entered, he was not aware of any change in the law concerning the preservation
of human biological evidence.

The circuit court found that there was no evidence that any
official of the Commonwealth acted in bad faith or with the intent to destroy
exculpatory evidence. The court stated in its findings that "McCarthy
believed he had the authority to destroy the trial exhibits once he received the
mandate" from this Court. The court also found that although Code
? 19.2-270.4:1 became effective 20 days before entry of the destruction
order, McCarthy was unaware of the statute’s provisions when the evidence was
destroyed.

B. BRADY CLAIMS

1. DR. PIERRE-LOUIS

Dr. Marie-Lydie Y. Pierre-Louis was the medical examiner who
performed the autopsy on Clayton Dicks. Among those present during the autopsy
were Assistant Commonwealth’s Attorney Margaret E. Lair-Eastman (Eastman), one
of the prosecuting attorneys at Lovitt’s trial, and Detective Stuart Chase of
the Arlington County Police Department.

During the autopsy, Dr. Pierre-Louis was shown two pairs of
scissors recovered from a container next to the cash register near the location
where Dicks’ body was found. Dr. Pierre-Louis was not shown the orange-handled
pair of scissors found with blood on the blade tip (the bloody scissors),
discovered in the woods behind the pool hall and admitted into evidence at
Lovitt’s trial.

The autopsy report prepared by Dr. Pierre-Louis indicated that
each of Dicks’ six stab wounds displayed a blunt and a sharp edge. The wounds
ranged in depth between three and eight inches, and three of these wounds were
between six and eight inches deep.

The autopsy report further indicated that one of the pairs of
scissors examined by Dr. Pierre-Louis had a total length of eight-and-one-half
inches with blades that were three-and-one-half inches long and one-half inch
wide at the base. The other pair of scissors she examined was six-and-one-half
inches in length and had blades that were three inches long and one-half inch
wide at the base.

At the autopsy, Dr. Pierre-Louis told Eastman and Detective
Chase that neither of the two pairs of scissors that she examined could have
been the murder weapon because the length and width of their blades were not
consistent with the nature and dimensions of Dicks’ stab wounds. Dr.
Pierre-Louis also told Eastman and Chase that she would have to examine the
bloody scissors before she could reach a conclusion whether those scissors were
the source of Dicks’ wounds.

Dr. Pierre-Louis’ opinion concerning the two pairs of scissors
she examined was not included in the autopsy report. Neither Eastman nor anyone
else in the prosecutor’s office informed Lovitt’s trial counsel of Dr.
Pierre-Louis’ opinion. During Lovitt’s trial, Dr. Pierre-Louis was not asked to
give her opinion concerning the two pairs of scissors that she had examined, nor
was she asked to opine whether the bloody scissors admitted into evidence were
consistent with Dicks’ stab wounds.

At the habeas hearing, Dr. Pierre-Louis testified that she is an
"expert on the wounds on the body" and that part of her expertise
includes determining "whether an object is consistent with a wound."
Dr. Pierre-Louis stated that each of Dicks’ stab wounds had both a blunt and a
sharp edge, indicating that a "single-edged blade" was used to cause
those wounds.

Dr. Pierre-Louis was shown a photograph of the bloody scissors
found in the woods near the pool hall. Using a measurement scale depicted in the
photograph, she determined that one blade was three-and-one-half inches long
from its tip to the base where the two blades are joined, and that this blade
was one-half inch wide at the base. She was unable to measure the other blade
because of its position in the photograph.

Dr. Pierre-Louis testified that the bloody scissors shown in the
photograph were inconsistent with Dicks’ wounds. She stated that three of those
wounds, which measured between six and eight inches in depth, were deeper than
the length of the three-and-one-half inch blade. She also stated that while the
other three wounds, which ranged between three and five inches in depth, were
"more or less" consistent with the length of the blade, the wounds
were twice as wide as the width of the blade.

Dr. Pierre-Louis further testified that if the blade had been
completely inserted into Dicks’ body, she would have expected to discover a
"notch" from the other blade or a contusion from the scissors’ handle
in the immediate vicinity of the stab wounds. However, she did not discover any
evidence of such "marginal abrasions" near Dicks’ wounds. Dr.
Pierre-Louis completely discounted "tissue compression" as an
explanation for the discrepancy between the scissors’ blade length and Dicks’
wounds because of the lack of "marginal abrasions" in the wound areas.
She stated that the discovery of Dicks’ blood on the scissors would not
influence her opinion that those scissors are inconsistent with Dicks’ wounds
because she does not know how the blood was transferred to those scissors.

On cross-examination, Dr. Pierre-Louis testified that she never
examined the bloody scissors depicted in the photograph and was unable to
determine the thickness of the blades or whether their outside edges were sharp.
Contrary to her testimony on direct examination, she conceded that it was
possible that a single blade of the scissors depicted in the photograph could
have caused the three stab wounds that measured between three and five inches
deep.

Both Detective Chase and Deputy Commonwealth’s Attorney Barbara
Walker, one of the prosecuting attorneys at Lovitt’s trial, testified that the
bloody scissors were different in size from the two pairs of scissors presented
to Dr. Pierre-Louis. Detective Chase also testified that he contacted Dr.
Pierre-Louis after the autopsy and informed her that the police had recovered a
certain pair of scissors that he concluded was the murder weapon, which he
described to her. He stated that when he described the bloody scissors to Dr.
Pierre-Louis, "she made some comment that, I guess I was wrong, or, I made
a mistake."

Eastman testified that when she told Dr. Pierre-Louis after the
autopsy that Dicks’ blood had been identified on the bloody pair of scissors,
Dr. Pierre-Louis shrugged and responded, "oh well." Eastman
interpreted Dr. Pierre-Louis’ response as a departure from her previous opinion
and an abandonment of "any notion that scissors could not be the murder
weapon."

Eastman testified that Lovitt’s counsel had a copy of the
autopsy report and had access to the physical evidence in the case, including
the bloody scissors. She further testified that she did not consider Dr.
Pierre-Louis’ opinion concerning the two pairs of scissors to be exculpatory
because neither pair was the murder weapon presented at trial.

Denman Rucker, one of Lovitt’s trial attorneys, testified at the
habeas hearing that the trial evidence concerning the bloody scissors
"actually worked to [his] benefit" during trial, and allowed him to
assert that an unknown assailant had perpetrated the crimes, which was the
"strongest argument" available for Lovitt’s defense. Rucker explained
that this evidence also allowed him to avoid having the jury infer that Lovitt
brought a deadly weapon with him to the pool hall.

The circuit court made a factual finding that after DNA test
results confirmed the presence of Dicks’ blood on the bloody scissors, "Dr.
Pierre-Louis indicated to the Commonwealth’s attorneys that she had been wrong
in her conclusion regarding the scissors." The court also found that
Lovitt’s defense counsel had access to the bloody scissors, the autopsy report,
and to Dr. Pierre-Louis prior to Lovitt’s trial.

Based on additional testimony by Denman Rucker, the circuit
court also found that Rucker had recognized the differences in the blade lengths
of the scissors listed in the autopsy report and the depth of Dicks’ wounds and,
as a result, had consulted with an expert at the Northern Virginia Forensic
Laboratory. Rucker further testified that the expert informed him that a pair of
scissors with a blade measuring between three-and-one-half and four-and-one-half
inches in length could inflict a wound up to seven inches deep during a
"frenzied" and "violent" attack based on a victim’s
breathing and the compression of body tissue. The court found that the expert
informed Rucker that such scissors could have been the murder weapon.

2. CASEL LUCAS

a. LUCAS’ PRIOR COOPERATION WITH AUTHORITIES

Before Lucas testified at trial, Eastman and Walker provided
Lovitt’s defense counsel with a report detailing Lucas’ extensive criminal
record. However, neither Eastman nor Walker disclosed to defense counsel that
Lucas had provided information to various police departments in four previous
criminal cases. The circuit court found that before the trial, the prosecutors
in Lovitt’s case were "unaware that Casel Lucas had provided information
regarding any other case."

The evidence at the habeas hearing showed that in 1998, Lucas
testified in Alexandria against Steven Evans, who had been charged with robbery.
In exchange for his testimony, Lucas received a total recommended sentence of 20
years’ imprisonment for various pending criminal charges, including robbery,
abduction with the intent to defile, and attempted rape.

Walker testified that although Lucas told her about his
cooperation with the police in the Evans case, she did not tell either Rucker or
Janell Wolfe, Lovitt’s co-counsel at trial, about Lucas’ role in that
prosecution. However, Walker stated that Lucas’ sentence in the Evans case was
included in his criminal record that the prosecution provided to defense counsel
before Lucas testified.

When Wolfe interviewed Lucas prior to his testifying, Lucas told
her of his involvement in the Evans case. However, Lucas did not inform Wolfe
that he had cooperated with the police in any other cases. Wolfe testified that
had she received such information, she and Rucker would have used it to impeach
Lucas’ credibility at trial. At Lovitt’s trial, Rucker cross-examined Lucas
concerning his cooperation with the police in the Evans case.

In 1996, Lucas provided information to the police concerning a
"jailhouse confession" made by Edward Young, who had been charged with
rape in Arlington County. Walker served as the prosecutor during the sentencing
in the Young case and Wolfe served as Young’s counsel. However, neither Walker
nor Wolfe was aware of Lucas’ involvement in the Young case because the case did
not proceed to trial and the defendant’s plea agreement did not mention Lucas.
Lucas did not receive any benefit in exchange for the information that he
provided in the Young case.

In 1997, Lucas provided information to detectives in the
District of Columbia concerning the "Starbucks triple homicide" case.
One of the detectives sent a letter to the judges of the Circuit Court of the
City of Alexandria informing them of Lucas’ cooperation in the Starbucks case.
There was no evidence that Lucas received any benefit resulting from his
cooperation with the police in that case. Further, prior to Lovitt’s trial, the
Arlington prosecutors did not have any information about Lovitt’s cooperation in
the Starbucks case.

In 1998, Lucas provided Alexandria authorities with a statement
detailing a defendant’s "jailhouse confession" in the "Eddie Lee
case." Lucas did not receive any benefit as a result of his cooperation in
that case, and the Arlington prosecutors were not aware of Lucas’ involvement in
the Lee case prior to Lovitt’s trial.

In June 1999, before Lovitt’s trial, Lucas sent a letter to
Judge Paul F. Sheridan of the Arlington County Circuit Court requesting
reconsideration of one of his sentences. In the letter, Lucas stated that he had
cooperated with the police in previous matters but did not mention Lovitt’s
case. The letter was sent directly to Judge Sheridan’s chambers and a copy of
the letter apparently was not placed in Lucas’ file until after Lovitt’s trial.
Lucas’ request for reconsideration was denied. The prosecutors in Lovitt’s case
were not aware of Lucas’ letter at the time of Lovitt’s trial.

b. LUCAS’ PRIOR INCONSISTENT STATEMENTS

At the habeas hearing, the court considered an affidavit
handwritten by Lovitt’s habeas counsel and signed by Lucas in September 2001.
The affidavit, which was prepared after Lovitt’s trial, contained several
statements that conflicted with Lucas’ trial testimony. For example, in the
affidavit, Lucas stated that he initially informed the prosecutors that Lovitt
had stated he used a gun to shoot Dicks, that Lovitt had discarded the weapon in
a drain, and that Warren Grant had driven Lovitt from the pool hall to Grant’s
house. These statements contradicted Lucas’ trial testimony that Lovitt stated
he used a knife or other object to stab Dicks, and that he discarded the weapon
while walking from the pool hall to Grant’s house.

In the affidavit, Lucas also stated that he received a reduced
sentence for his cooperation in the Young case, and that he learned about the
details of Dicks’ murder from "Crime Stoppers" and the Washington
Post. At habeas counsel’s request, Lucas had "initialed" each
paragraph of the affidavit.

Lucas testified that the inconsistent statements contained in
the affidavit were not accurate and that his testimony during Lovitt’s trial was
truthful. Lucas stated that on the day he signed the affidavit, he was
"confused" after answering "three hours’ worth of questions"
posed by Lovitt’s habeas counsel. Lucas also stated that he did not feel
"too good" that day because he had undergone a tooth extraction and
was waiting to receive some medication.

Lucas further testified that he did not thoroughly read the
affidavit, but merely "glimpsed through it" and "glanced over
it," not paying attention to its content. He also testified that he was
mistaken when he had stated that he received a sentence reduction in exchange
for his cooperation in the Young case. Additionally, Lucas stated that Lovitt
was his sole source of information concerning the testimony he gave at Lovitt’s
trial.

Eastman testified that Lucas’ trial testimony was consistent
with the statements he had made before Lovitt’s trial. She stated that Lucas’
description of Lovitt’s initial story was consistent with a statement that
Lovitt had given to the police shortly after his arrest. Included in Lovitt’s
initial story to Lucas were assertions that Lovitt was in the pool hall restroom
during Dicks’ murder, and that he took the cash register drawer after an
allegedly unknown assailant had killed Dicks.[2]

The circuit court found that Lucas had "disavowed" the
affidavit written by Lovitt’s habeas counsel that had set forth the inconsistent
statements Lucas allegedly had made before trial. The court also found that
Lucas did not make any statements before trial that were inconsistent with his
trial testimony.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Two of Lovitt’s stepsisters and a cousin testified at the habeas
hearing about Lovitt’s family background. We will describe that testimony in
detail in Part IV(C), infra, of our discussion which addresses the issue
whether Lovitt received effective assistance of counsel at trial. In that
discussion, we will also describe the various jail, substance abuse, juvenile,
and other records introduced into evidence at the habeas hearing.

Rucker and Wolfe testified at the habeas hearing that they were
concerned that if the jury was told about the criminal records and substance
abuse of Lovitt’s siblings and stepfather, the jury could conclude that Lovitt’s
family background increased his future danger to society. Wolfe also stated that
she asked Lamanda Jones to testify on Lovitt’s behalf and spoke with her for
between "45 minutes or an hour" before presenting her as a witness in
the penalty phase proceeding. Wolfe explained that Jones testified regarding
"exactly what we wanted her to get on the stand and say," and that
Jones’ testimony "humanized" Lovitt by showing the jury that he had a
family.

With regard to the guilt phase of the trial, the circuit court
found that defense counsel made a tactical decision not to pursue additional DNA
testing of the bloody scissors and Lovitt’s jacket, which allowed counsel to
argue that an unknown assailant killed Dicks. The court concluded that Rucker’s
investigation into the discrepancy between the length of the scissors and the
depth of Dicks’ stab wounds yielded information from an expert that scissors of
the specified dimensions could have caused such wounds. The court also found
that Wolfe interviewed Lucas and obtained his criminal record prior to his
testifying at Lovitt’s trial.

With regard to the penalty phase of the trial, the circuit court
found that trial counsel adopted a strategy for the penalty phase that focused
on efforts to "humanize" Lovitt and to show that he would not be
dangerous in the penitentiary by emphasizing his good behavior while he was
incarcerated awaiting trial. The court also found that in preparation for trial,
Rucker and Wolfe obtained "all of Lovitt’s jail records from the Arlington
County Detention Facility, all of his juvenile records, his records from the
Beaumont juvenile facility, his medical records, and his pre-sentence
report."

The court further found that both Rucker and Wolfe were aware of
the criminal history of Lovitt’s family members from having represented some of
his siblings in prior criminal proceedings, and from their "general
reputation in the community" of having a "predilection for criminal
activity." The court found that trial counsel made a strategic decision not
to introduce evidence of Lovitt’s family background, and that the social
services records of Lovitt’s siblings would not have assisted defense counsel in
preparing for the penalty phase of the trial. In addition, the court found that
Lovitt had not given trial counsel any indication that he had been a victim of
sexual or physical abuse by his stepfather.

IV. DISCUSSION

A. DESTRUCTION OF EVIDENCE

Lovitt argues that McCarthy, an agent of the Commonwealth,
procured the destruction of the trial exhibits in bad faith, and that the
destruction of this evidence violated his right of due process by preventing
meaningful review of his habeas corpus petition. Lovitt also observes that under
Code ?? 19.2-270.4 and –270.4:1, trial evidence may not be
destroyed until after all appellate remedies have been exhausted, and that DNA
evidence in a death penalty case may not be destroyed until the final judgment
is executed. He asserts that the death penalty is "not a reliably
appropriate punishment" under circumstances when material evidence has been
destroyed and that, therefore, his sentence should be vacated. We disagree with
Lovitt’s arguments.

We first address Lovitt’s due process claim. He asserts that he
is entitled to habeas corpus relief because he has been deprived of an
opportunity to seek new scientific testing of the DNA found on the bloody
scissors and his jacket. Lovitt asserts that this testing is necessary for him
to seek a writ of actual innocence under Code ?? 19.2-327.2 through –327.6.[3]However,
he fails to present authority to support his claim that habeas corpus relief is
the proper remedy for his inability to obtain this further testing. He further
acknowledges that the United States Supreme Court has not addressed the question
whether due process rights may be asserted against the post-trial destruction of
evidence.

In the absence of such authority, Lovitt relies on Arizona v.
Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 467 U.S.
479 (1984), in which the Supreme Court considered due process claims involving
the pre-trial destruction of evidence. In Youngblood, the Supreme Court
drew a distinction between the government’s failure to disclose material
exculpatory evidence and the failure to preserve potentially exculpatory
evidence. The Court explained that:

The Due Process Clause of the Fourteenth Amendment, as
interpreted in Brady, makes the good or bad faith of the State
irrelevant when the State fails to disclose to the defendant material
exculpatory evidence. But we think the Due Process Clause requires a
different result when we deal with the failure of the State to preserve
evidentiary material of which no more can be said than that it could have
been subjected to tests, the results of which might have exonerated the
defendant. . . . We think that requiring a defendant to show
bad faith on the part of the police both limits the extent of the police’s
obligation to preserve evidence to reasonable bounds and confines it to that
class of cases where the interests of justice most clearly require it, i.e.,
those cases in which the police themselves by their conduct indicate that
the evidence could form a basis for exonerating the defendant. We therefore
hold that unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute
a denial of due process of law.

This constitutional standard of materiality, decided in the
context of a state’s pre-trial destruction of evidence, reflects the importance
courts attach to the integrity of the trial process and to the ability of an
accused to defend against criminal charges brought against him. SeeTrombetta,
467 U.S. at 485. Therefore, during the course of a criminal trial, the Due
Process Clause of the Fourteenth Amendment requires that the government satisfy
such prevailing concepts of fundamental fairness. Seeid.

In a habeas corpus proceeding, however, the truth-seeking
function of the trial process yields to a focus on the legality of a
petitioner’s detention and whether the petitioner presently is detained in
violation of any constitutional rights. SeeVirginia Parole Bd. v.
Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 695, 696 (1998); McClenny v.
Murray, 246 Va. 132, 134-35, 431 S.E.2d 330, 331 (1993); Smyth v. Holland,
199 Va. 92, 96-97, 97 S.E.2d 745, 748-49 (1957). This different focus raises the
issue whether a due process right may be asserted in a habeas corpus proceeding
to challenge the post-trial destruction of evidence when a petitioner’s trial
and direct appeal have concluded.

We need not resolve this issue in the present case, however,
because Lovitt fails to establish that he qualifies for relief under the Youngblood
standard that he asks us to apply. Therefore, for purposes of this petition
only, we will assume, without deciding, that a habeas petitioner may assert a
due process claim regarding the post-trial destruction of evidence, and that theYoungblood standard governing pre-trial destruction of evidence also
applies to a due process claim involving evidence destroyed post-trial.

As provided above, under the Youngblood standard, a
state’s failure to preserve potentially useful evidence does not constitute a
denial of due process unless a defendant can show bad faith on the part of the
state. Youngblood, 488 U.S. at 58; United States v. Newsome, 322
F.3d 328, 334 (4th Cir. 2003); Basden v. Lee, 290 F.3d 602, 615 (4th Cir.
2002), cert. denied, 537 U.S. 980 (2002); Thomas, 244 Va. at 18,
419 S.E.2d at 615. The presence or absence of bad faith by the state depends on
whether agents of the state had knowledge of the exculpatory value of the
evidence when it was lost or destroyed. Youngblood, 488 U.S. at 56 n.*; Holdren
v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994). Thus, the possibility that
evidence could have exculpated a defendant depending on future testing results
is not enough to satisfy the constitutional standard of materiality. SeeYoungblood,
488 U.S. at 56 n.*.

In the present case, the circuit court concluded that
"[t]here [was] no evidence that any official of the Commonwealth acted in
bad faith." The court also found that "[t]here [was] no evidence to
conclude that there was an intent by anyone in the Clerk’s office to destroy
exculpatory evidence." The court further found that while Robert McCarthy’s
judgment was erroneous, he "wanted to remove the box of exhibits from the
evidence room to make additional space," and he "believed he had the
authority to destroy the trial exhibits once he received the mandate indicating
that Lovitt’s appeal to the Virginia Supreme Court had been denied."

The circuit court’s determination that there was an absence of
bad faith was a finding of fact, not of law, because that finding rested on the
knowledge of the Commonwealth’s agents concerning the exculpatory value of the
evidence at the time it was destroyed. Seeid.; Holdren, 16
F.3d at 60; Thomas, 244 Va. at 18, 419 S.E.2d at 615-16. Such factual
findings made by the circuit court are entitled to deference and are binding in
this proceeding unless they are plainly wrong or without evidence to support
them. Hedrick, 264 Va. at 496, 570 S.E.2d at 847.

The circuit court’s findings concerning the absence of bad faith
are supported by the evidence and are not plainly wrong. McCarthy’s actions, and
the failure of Kleback and Gilmore to report his intentions to another
supervisor, do not establish that an agent of the Commonwealth had knowledge of
any exculpatory value of the trial exhibits at the time they were destroyed. SeeYoungblood, 488 U.S. at 56 n.*; Holdren, 16 F.3d at 60. The mere
fact that the exhibits included DNA evidence, and that Kleback may have related
this information to McCarthy, does not establish that McCarthy was aware that an
analysis of some of the DNA evidence had produced inconclusive results, or that
such evidence may have been subject to further testing. Moreover, even if
McCarthy had been aware of these considerations, such awareness would not have
met the constitutional standard of materiality under Youngblood, because
Lovitt can assert no more than the mere possibility that further testing could
have exculpated him. SeeYoungblood, 488 U.S. at 56 n.*.

In addition, the circuit court found that at the time the
evidence was destroyed, McCarthy was unaware that Code ? 19.2-270.4:1,
enacted 20 days before the destruction order was entered, mandated the storage
of human biological evidence received in the case of a person sentenced to
death. McCarthy’s testimony adequately supports this finding.

The circuit court made an additional factual finding that no
employees of either the Commonwealth’s Attorney or the Attorney General knew
about the destruction of evidence until after the destruction occurred. This
finding is supported by the testimony of Margaret Eastman, Barbara Walker, and
McCarthy. The record also shows that Judge Paul F. Sheridan, who entered the
evidence destruction order, had not presided over Lovitt’s trial. Therefore, we
hold that the record lacks any evidence that an agent of the Commonwealth acted
in bad faith with regard to the destruction of the trial exhibits.

We turn now to consider Lovitt’s claim that he is entitled to
habeas corpus relief because the destruction of the trial exhibits violated
Code ?? 19.2-270.4 and –270.4:1. Code ? 19.2-270.4(A)
provides, in relevant part:

Except as provided in ? 19.2-270.4:1 and unless
objection with sufficient cause is made, the trial court in any criminal
case may order the donation or destruction of any or all exhibits received
in evidence during the course of the trial (i) at any time after the
expiration of the time for filing an appeal from the final judgment of the
court if no appeal is taken or (ii) if an appeal is taken, at any time after
exhaustion of all appellate remedies.

In the case of a person sentenced to death, Code
? 19.2-270.4:1(B) requires the Commonwealth to store, preserve, and retain
any human biological evidence, or representative samples thereof, until the
judgment is executed. This statute also provides that any noncompliance with the
terms of the statute "shall not form the basis for relief in any habeas
corpus or appellate proceeding." Code ? 19.2-270.4:1(E).

In enacting Code ?? 19.2-270.4 and –270.4:1, the
General Assembly provided for both the retention of trial evidence, including
evidence containing DNA, and the ultimate disposal of such evidence when all
appellate remedies have been exhausted and judgment has been executed. Such
procedures protect the efficacy of the appellate process, as well as the need to
preserve evidence for use in the event of a retrial or other proceeding allowed
by law. However, in stating the procedural requirements relating to the
retention of human biological evidence in Code ? 19.2-270.4:1, the General
Assembly also recognized that noncompliance with those procedures may occur and
provided statutory language plainly excluding any such noncompliance as a basis
for appellate or habeas corpus relief.

Based on this unambiguous statutory proscription, we find no
merit in Lovitt’s contention that the Commonwealth’s failure to comply with
either statute’s provisions relating to human biological evidence presented at
his trial entitles him to habeas corpus relief. Thus, we hold that Lovitt has
failed to advance any valid basis for habeas corpus relief arising from the
destruction of the trial exhibits in his case.

B. BRADY CLAIMS

Lovitt argues that the Commonwealth failed to disclose certain
exculpatory evidence before trial. He contends that Dr. Pierre-Louis’ comments
at the autopsy concerning the scissors she examined were exculpatory, and that
the Commonwealth’s failure to disclose this information prejudiced him because
these comments directly contradicted the Commonwealth’s theory that Dicks was
murdered with a pair of scissors. Lovitt also argues that the Commonwealth was
required to disclose evidence of Lucas’ allegedly inconsistent prior statements
and his cooperation with different law enforcement authorities, and asserts that
such information could have been used to attack Lucas’ credibility at trial.[4]

In response, the warden argues that Dr. Pierre-Louis’ comments
were not exculpatory because she did not examine the bloody scissors that were
admitted at trial and those scissors were different in size from the two pairs
of scissors she actually examined. The warden also asserts that Casel Lucas did
not make any prior inconsistent statements that should have been disclosed by
the Commonwealth, and that the Commonwealth was not required to disclose Lucas’
cooperation in other criminal cases of which the Commonwealth was unaware at the
time of Lovitt’s trial.

Exculpatory evidence is material if there is a reasonable
probability that the proceeding would have resulted in a different outcome had
the evidence been disclosed to the defense. Strickler, 527 U.S. at 280; Kyles,
514 U.S. at 433; United States v. Bagley, 473 U.S. 667, 682 (1985); Cherrix
v. Commonwealth, 257 Va. 292, 302, 513 S.E.2d 642, 649, cert. denied,
528 U.S. 873 (1999); Soering, 255 Va. at 464, 499 S.E.2d at 517; Bowman,
248 Va. at 133, 445 S.E.2d at 112. A "reasonable probability" is one
that is sufficient to undermine confidence in the outcome of the proceeding. Kyles,
514 U.S. at 434; Bagley, 473 U.S. at 682; Soering, 255 Va. at 464,
499 S.E.2d at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. At the
heart of this inquiry is a determination whether the evidence favorable to the
defendant could reasonably be considered as placing the entire case in such a
different light that confidence in the verdict is undermined. Strickler,
527 U.S. at 290; Kyles, 514 U.S. at 435.

This due process analysis requires consideration on an
item-by-item basis whether the evidence at issue was exculpatory. Kyles,
514 U.S. at 436 n.10; United States v. Ellis, 121 F.3d 908, 916 (4th Cir.
1997). However, the determination whether undisclosed exculpatory evidence was
material must be made by considering its cumulative effect. Kyles, 514
U.S. at 436 n.10; Monroe v. Angelone, 323 F.3d 286, 302 (4th Cir. 2003); Ellis,
121 F.3d at 916.

We first consider Dr. Pierre-Louis’ comments made at the autopsy
that the two pairs of scissors she was shown were not consistent with Dicks’
wounds. As stated above, both Detective Chase and Barbara Walker testified that
these scissors were not the same size as the bloody scissors, which were the
scissors introduced at trial. In addition, after the bloody scissors were
subjected to DNA testing, which showed that Dicks’ blood was on the tip of the
scissors, Dr. Pierre-Louis told Detective Chase that she had been wrong in her
earlier conclusion regarding the pairs of scissors she examined.

We conclude that Dr. Pierre-Louis’ opinion concerning the
scissors presented at the autopsy was not exculpatory evidence because that
opinion related to scissors that were not introduced into evidence, were not the
alleged murder weapon, and were not shown to be the same size as the alleged
murder weapon. Her initial opinion also was not exculpatory in light of the
circuit court’s factual finding, supported by the testimony of Detective Chase,
that Dr. Pierre-Louis changed her opinion before trial. Therefore, we hold that
the prosecution was not required to provide the defense information concerning
Dr. Pierre-Louis’ initial opinion stated at the autopsy.

Because Dr. Pierre-Louis’ statement was not exculpatory, we are
not required to consider the issue of the materiality of that evidence.
Nevertheless, we observe that the Commonwealth’s failure to disclose this
information could not have prejudiced Lovitt’s defense because Dr. Pierre-Louis
conceded at the evidentiary hearing in the present case that two of Dicks’ fatal
wounds, designated on the autopsy report as wounds #2 and #3, could have been
caused by the bloody scissors. This acknowledgement that the bloody scissors
could have been the source of two of Dicks’ fatal wounds completely negates
Lovitt’s claim that there is a reasonable probability that his trial would have
resulted in a different outcome if Dr. Pierre-Louis’ initial opinion had been
provided to the defense.

In addition, as the circuit court found, the evidence in the
present case showed that trial counsel Denman Rucker investigated before trial
whether the scissors like those presented at the autopsy could have caused
Dicks’ wounds. Upon consultation with a forensic expert, Rucker was told that
scissors of that approximate size could have caused Dicks’ wounds. Thus, Lovitt
cannot show he was prejudiced by the Commonwealth’s failure to inform him of Dr.
Pierre-Louis’ initial opinion, because he was aware of the issues involving
scissors of that approximate size and investigated those issues as part of his
defense in Lovitt’s trial.

We next consider the issue whether the Commonwealth failed to
disclose material exculpatory evidence concerning Casel Lucas that could have
been used to impeach his credibility at trial. Although the circuit court
received evidence that Lucas had provided information to the police on several
occasions, the evidence showed that on only one such occasion, the Evans
prosecution in Alexandria, did Lucas receive any benefit from his cooperation
with the police.

When a person has provided information to governmental agents
about the commission of a crime for which he received a benefit in the
disposition of criminal charges against him, this fact may be used to impeach
his credibility when he testifies as a witness for the prosecution. SeeGiglio
v. United States, 405 U.S. 150, 154-55 (1972); Cargle v. Mullin, 317
F.3d 1196, 1215-16 (10th Cir. 2003); United States v. Lee, 867 F.2d 206,
207-08 (4th Cir. 1989). However, when a person does not receive a benefit from
providing such information, and later testifies as a prosecution witness, the
mere fact of his prior cooperation with the governmental agents does not
constitute impeachment evidence subject to disclosure as exculpatory evidence. SeeCollier v. Davis, 301 F.3d 843, 849 (7th Cir. 2002), cert. denied,
___ U.S. ___, 123 S.Ct. 1290 (2003